Decision Making and Natural Justice (NJ) for Designated


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PART 1. APPOINTMENT AND ROLE OF DESIGNATED PERSONS (DPs) AND REVIEW OFFICERS

PART 2. CIRCUMSTANCES OF APPLICANTS/PROVISION OF INFORMATION

PART 3. BASIC PRINCIPLES OF EVIDENCE AND PROOF

  • Burden of Proof
  • Responsibility for obtaining evidence
  • Statements of claimant
  • Extract from Court Ruling
  • Facts

PART 4. WEIGHING THE EVIDENCE

Three types of evidence:
1. Direct Evidence
2. Circumstantial or indirect evidence
3. Hearsay evidence

PART 5. NATURAL JUSTICE

  • Rule (1) - the other side must be heard
  • Rule (2) No one should be judge in his/her own cause
  • Suspension of Payment
  • Disclosure of documents

PART 6. RECORDING OF DECISIONS

  • Reasons for Decisions
  • Disallowances on more than one ground

PART 7. THE DECISIONS

  • What happens if NJ is not followed
  • Judicial Review
Summary of DP functions

PART 1. APPOINTMENT AND ROLE OF DESIGNATED PERSONS (DPs) AND REVIEW OFFICERS

DPs are appointed under Section 299(2) Social Welfare Consolidation Act 2005 (as amended), to decide on a person’s entitlement to Supplementary Welfare Allowance (SWA) and the amount of any such allowance.   The section states:

“299(2) The Minister may appoint such and so many persons as he or she thinks proper to be designated persons for the purposes of the determination of the entitlement of any person to supplementary welfare allowance and the amount of any such allowance and the Minister may at any time terminate an appointment under this subsection whether or not the appointment was for a fixed period”

“299(3) An appointment as a designated person under subsection (2) shall cease—
(a) if the Minister terminates the appointment,
(b) if it is made for a fixed period, on the expiry of that period, or
(c) where the person is an officer of the Minister, if that person ceases to be an officer of the Minister.

There is no provision for determinations in relation to Allowances in Kind; Exceptional Needs Payments; or Urgent Needs Payments to be appealed to the Social Welfare Appeals Office (SWAO). Instead, section 323 of the Act provides that people who are dissatisfied with a Designated Persons (DP’s) determination on any of those three schemes can request a review to by a Review Officer.    The section states:

“323.Where a person is dissatisfied with the determination of a designated person of a claim by him or her under section 200, 201 or 202, an appeal lies against the determination to another person appointed or designated by the Minister.”

Article 41 (Part 7) of the Social Welfare (Consolidated Supplementary Welfare Allowance) Regulations 2007 (S.I 412 of 2007) (as amended) provides that a person appointed or designated by the Minister under section 323 will be known as a “Review Officer”.   The article states (in sub-article (1)):

“41. (1) In Part 7 “Review Officer” is a person designated by the Minister under section 323 as the person to whom the appeal shall lie. Any person (in this and the following articles referred to as the “appellant”) who is dissatisfied with the determination by a designated person of a claim by him or her for supplementary welfare allowance under section 200, 201 and 202 and wishes to appeal against such determination shall give notice in that behalf, in writing to a review officer.”

Consistency in Decision Making

DPs are bound by the legal provisions in the Social Welfare Acts and Regulations. In considering cases the DP should be familiar with any guidelines issued by Management in relation to the legislation concerned. Such guidelines are issued to ensure consistency of decisions by DPs generally. If a DP considers that a particular guideline is incorrect and proposes to make a decision which conflicts with it, s/he should notify management so that the guideline can be corrected, if appropriate.

PART 2. CIRCUMSTANCES OF APPLICANTS/ PROVISION OF INFORMATION:

It is worth noting that some claimant’s circumstances require especially sensitive consideration e.g.
a) A programme refugee or a convention refugee, someone who has now being granted refugee status by the Irish state.
b) An asylum seeker - someone who claims refugee status and whose claim has not yet been definitively evaluated
c) Someone who may have left their home because of domestic violence which may make them especially vulnerable.

It is important that they are treated with empathy and understanding and, as in all applications for schemes from any claimant, it is essential that staff do not display, by action or words, prejudice against the individual or their status.

Some customers may be suspicious of state organisations based on their experience of government bodies in their own countries of origin.

Note: DPs may meet a particular once-off need by way of an exceptional needs payment under the supplementary welfare allowance scheme. Payments under this category cover once-off costs - appliances, furniture, repairs etc. and are not subject to the habitual residence condition.

Interpreters

Be conscious that some customers first language may not be English and interpretation may be required. For full details of the interpretation service available in DEASP, click here
http://www.welfare.ie/en/Pages/Translation--Interpretive-and-Sign-Language%c2%a0Services.aspx

Sometimes, claimants attend DEASP Offices with accompanying relatives as interpreters (e.g. spouse, partner or children). This is not ideal – sometimes the claimant may not wish to recount painful events in the presence of relatives. It may be necessary to use an interpreter of the same gender as the applicant, especially on occasions in which the information concerns health and medical care, or humiliating experiences such as torture, rape or imprisonment.
If an interpreter is used when interviewing a customer, this fact should be noted on file. Equally, if an interpreter is not available and the customer’s level of English is poor this should also be noted on file.

Note: An interpreter service should be offered if a claim is reviewed at a later stage also, where warranted.

Points to note:

  • (a)It is important that customers are not deterred from applying for SWA even if it appears that they may not qualify. Customers should not be told verbally that they will not qualify for a SWA scheme. All customers are entitled to make an application and if entitlement does not exist they have a right to receive a written decision which clearly gives the grounds and reasons for refusal and the right to seek a review  (ENP/UNP/Payments in Kind) or to appeal the decision (Basi and Supplements).
  • (b)It is important that customers are advised of other possible entitlements such as SWA  Exceptional Needs Payments (ENP) or entitlements to additional benefits such as Family Income Supplement (FIS) etc. 
  • (c)Consider whether another scheme might be more beneficial to customer e.g. if a person applies for JA but s/he is a widow(er), s/he should be advised to apply for Widow (er)’s and Surviving Civil Partner’s Pension (WSCPP)
  • (d)All efforts should be made to help customers make a claim and understand the importance of providing supporting documentation e.g. where there are language difficulties assistance should be provided by offering interpreter services.

If all facts and supporting evidence are established at claim initiation stage, there is less likelihood of reviews and appeals being requested thus cutting down on workloads.

Disallowances on more than one ground:

Where an appeal is made against the decision of a DP, the Appeals Officer is confined to the question the DP has determined . If, therefore, a DP considers that a claimant fails to satisfy more than one of the qualifying conditions of entitlement, s/he should impose a disallowance  in respect of all such conditions. For instance, the DP's decisions on a claim for Rent Supplement might be that the claimant is (1) `Rent is in excess of the maximum rent  limits for your family size' and (2) `your spouse/civil partner/cohabitant is in full-time work'.

PART 3. BASIC PRINCIPLES OF EVIDENCE AND PROOF

Burden of Proof:

In general when a person makes a claim for SWA, the burden of proof is upon that person to prove the conditions governing the claim are satisfied. However, the Department already hold a considerable amount of information and the identity, claim history and circumstances of our customers and this can reduce the need to seek supporting documentation in some cases, as set out in more detail below.

The following points should be borne in mind:-

1. Initially the burden of proof lies upon the claimant to prove the conditions governing the claim are satisfied. For example, if the claimant asserts "I have no money" s/he must be prepared to sign/submit relevant authorities/statements required by the Department. If his/her style of living indicates s/he is living in poor conditions it would then be a matter for the Department to produce rebutting evidence. However, if his/her circumstances or style of living is such that it could not be maintained without some other source of income, it is valid and proper that the DP may require a satisfactory explanation.

2. The Department already holds a considerable amount of information on identity, claim history and circumstances of our customers. Following IT developments in the past fes years information which was held in a number of legacy systems is now readily accessible to all staff via BOMi. In may cases, where there is information already available to DP’s, it is not necessary to seek the information again from the customer.

3. Where a claimant contends that they cannot obtain evidence requested, the DP should be as helpful as possible but emphasise that as a matter of law the burden of providing evidence to support a claim mus,t in general, rest upon the claimant. However, the claimant cannot be held responsible for failure to produce evidence where it was not within his/her power to do so.

4. Where the claimant has been awarded SWA and a question arises of withdrawing it or of reducing the amount of payment, the burden is on the Department to show that his/her entitlement has changed, or that there was fraudulent concealment of relevant facts.  In the case of allegations of such change or concealment, a higher degree of probability is required i.e. there must be clear evidence available to establish the truth of the allegation.

5. Where a criminal court convicts a person of an offence related to obtaining or receipt of SWA, the burden of proof is on the claimant to show that the circumstances have changed
since the period covered by the conviction.

Responsibility for obtaining evidence

It is the responsibility of the claimant to obtain evidence to support a claim except where the evidence is readily available to the DP through BOMi. However, some claimants may find it difficult or impossible to obtain evidence themselves and DPs and others involved in the process should be as helpful as possible while emphasising that, as a matter of law, the burden of providing evidence to support a claim rests upon them.

Statements of claimant

An assertion by a claimant such as: "I did not work when claiming an SWA payment" does not necessarily establish a fact. However, there is no rule of law which says a claimant's statement must be corroborated. Naturally, the DP should test the statement for consistency with other available evidence, and clear up any contradictions that may arise.
If a DP does not accept statements provided, this should be clearly indicated to the claimant, specifying the reasons why.

Where a claimant voluntarily provides information to the Department, confirming a change in their circumstances such as commencing employment, a record of this should be kept on their claim. In this situation staff should take special care in ensuring that the claimant states all relevant information clearly and that both claimant and DP are in agreement on the content and nature of the information provided. A record should be recorded electronically on the claim on BOMi. Customers should be requested to provide written evidence of the change in circumstances, such as the new employment contract, if this is not available when they report of a change in circumstances, it should be submitted as soon as its available. The fact that further information was sought from the claimant should also be recorded, as necessary.

Extract from Court Ruling:

"It seems to me that the Deciding Officer was entitled to have regard to the personal circumstances of the applicant; the obvious demands on his very limited resources; the value of the vehicle which he owned; the cost of maintaining it and the purposes for which it might be used. If he drew, as it seems to me that he did draw, the inference that the applicant had a more substantial income, or, alternatively an undisclosed source of income which would result in the applicant exceeding the maximum permitted statutory figure such a decision could not be described as unreasonable, less still "plainly and unambiguously flying in the face of fundamental reason and common sense" which is the criterion laid down by the Supreme Court in The State (Keegan) v Stardust Victims Compensation Tribunal[1986] I.R.642 as the test by which decisions of administrative tribunals will be judged."

[Corcoran v Minister for Social Welfare etc. (1990 224. I.R.)]

Facts

A fact is defined as either a circumstance or an occurrence which must have existed at the time the decision is given, the truth of which is known, accepted or proved.

In general, each decision must be given on the facts as they exist and not in anticipation of a future state of facts. The exception is that a claim may be made in advance of the day from which entitlement would start.

The determination of the facts is a matter for the DP and, if appealed/reviewed, the Appeals/Review Officer. The courts may examine the legality of the decision (e.g. the application of the law or natural justice) but they are not a further court of appeal regarding the facts.

PART 4 .WEIGHING THE EVIDENCE

A DP should approach the determination of claims and questions by first considering the evidence. From that evidence the facts of the case should be established. The DP then should apply the law to the established facts.  This approach should be applied irrespective of the payment concerned.

Evidence may be written or oral.

Three types of evidence:

1. Direct Evidence

Direct evidence relates to the facts in dispute. Direct evidence is regarded as best evidence and outweighs any another evidence.  

Examples:

  • A report by an investigating officer/DP  that he saw a claimant working on a building site.
  • A birth certificate, provided the deciding authority is satisfied it refers to the claimant, would be direct evidence of the age of the person claiming.

2. Circumstantial or indirect evidence

Circumstantial or indirect evidence tends to establish a fact by inference. It is the proof of "facts in issue" (i.e. the facts that control the decision) by means of other facts.
 
Examples:

  • The investigator/DP saw the claimant's car at a building site and the claimant, a painter, was seen leaving the building site with painting equipment, getting into the car and driving away.
  • Church and school records are circumstantial evidence of age.


3. Hearsay evidence

Hearsay evidence is based on what has been reported by others rather than directly observed.

Example:

  • The investigating officer/DP reports he was told by Mr X that the claimant was working on a building site

 Proportionality 

In Heaney v. Ireland  [1994]. The elements necessary, where a restriction of a right is involved, are that the restrictions must:-
"(a)  be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations;
(b)   Impair the right as little as possible, and
(c)   Be such that their effects on rights are proportional to the objective"

Natural Justice requires that the claimant be afforded an opportunity of challenging the evidence. If the claimant does not refute the evidence, the hearsay evidence becomes valuable, and the investigator's opinion on its reliability should be obtained.

 Points to Note:

The weight to be given to these categories of evidence must be carefully considered but it has to be a matter for the judgement of the individual DP concerned. Many facts will be submitted with an application made to the DP. Others might be obtained through inquiries or investigation. This may require the DP to:

  • Review documents further where there is incomplete or conflicting information;
  • Seek a report from a Social Welfare Inspector or
  • Seek specialist advice e.g. refer to Department of Justice and Equality regarding right to reside.

There are many factors that may affect the weight of evidence e.g. the age, reliability or demeanour of a witness, the proximity in time of certain acts to those under investigation and the number of possible explanations of a particular event.

Care should be exercised when considering applications to ensure that speculation is not entered into.

The DP should demonstrate how he or she arrived at their decision and what evidence was taken into account.

See Natural Justice Rule (1) – the other side must be heard.

PART 5 . NATURAL JUSTICE (NJ)

Every claimant is entitled to have their claim considered in accordance with the principles of natural and constitutional justice and in the context of determinations of entitlement under the social welfare legislation that includes:

1. The right to know the information, upon which a decision is being made,
2. The opportunity to comment upon any reports or documents being used in reaching the decision and to present his or her case,
3. The right to know the reasons for any adverse decision,
4. The right to have all relevant evidence considered and irrelevant evidence not taken into account,
5. To have the decision made by an impartial person whose discretion has not been fettered and
6. Where it is necessary for a fair determination of the issues, an oral hearing.

Over the years, the Courts have laid down rules for administrative bodies to ensure that persons seeking benefits etc. are dealt with in a scrupulously fair manner. These rules, which are known as the Rules of Natural Justice, apply to all administrative bodies and tribunals.

The following rules are addressed to DPs in making decisions on claims for a SWA payment but apply also to all staff in the Department who make other types of decisions that could have an adverse effect on the person concerned.

A DP should approach the determination of claims and questions by first considering the evidence. From that evidence the facts of the case should be established. The DP then should apply the law to the established facts.  This approach should be applied irrespective of the payment concerned.

SWA Circular 12/89 - SWA & the application of the Principles of Natural Justice

Rule (1) - the other side must be heard

This rule requires that every person who may be adversely affected by a decision must be informed of any statement or allegation affecting his/her claim of which s/he was not aware and on which any pending suspension or unfavourable decision may be based and mustbe given an opportunity to refute or comment before payment is suspended or before a decision is given in the case.

Action to be taken

In general, the need for action arises only where the evidence on which the suspension or the decision will be based has come from a source other than the claimant him/herself e.g. an employer in regard to the reason for the loss of employment, or information ascertained by a DP/Social Welfare Inspector other than that furnished by the claimant him/herself.

Application of this rule arises most frequently in the case of revised decisions on current claims and suspensions where consideration is being given to reducing or withdrawing a person's existing entitlement to SWA. It can also arise in the case of fresh or renewed claims where information is received that conflicts with that furnished by the claimant e.g. a report from an employer, evidence of undisclosed means, evidence that the claimant's spouse or children are not residing with or being supported by the claimant etc.

However, it does not apply where, for instance:

  • The information is provided by the claimant (e.g. date of birth, composition of means) or
  • The information is based on the person's insurance or earnings record, and is consistent with the employment history disclosed.

Spelling out the Implications

Where the continuing entitlement to SWA is being reviewed, the possible consequences of the review must be made clear to the claimant. For instance, if a claimant on SWA Rent Supplement did not inform the DP that his spouse was in employment, or a reduction in entitlement due to part-time work or no further entitlement due to claimants full-time work, this should be pointed out and it should be explained that the  payment will be reduced or discontinued in which case the Department may decide to raise an overpayment which it will want to recover.

Allegations of abuse

Reports of abuse (whether confidential, anonymous or otherwise) should be used by DPs as an indication of suitable lines of enquiry. However being "hearsay evidence" they have no weight as evidence.

Please see Guidelines to  Designated Persons "Confidential & Anonymous Reports"for action to be taken in investigating, reporting following investigation, and filing of such reports -  SWA Circular 03/05 and SWA Note for Information dated 17/10/2013 and RSU Circular 052/16.

Reports of abuse (whether confidential, anonymous or otherwise) should be used by scheme areas and Social Welfare Inspectors/DP’s as an indication of suitable lines of enquiry.

The allegation must either be proved independently by a DP obtaining sufficient evidence or by obtaining an admission from the customer/or where the claimant does not refute the evidence put to them.

Reports given in confidence

Information given in confidence in letters containing allegations of abuse are available to the DP who is making the decision.  The decision would be invalid under the rules of NJ if a DP  was, or might appear to have been, influenced by information that was not disclosed to the claimant, and which the claimant had no opportunity to rebut.

Therefore it is essential that information given in confidence in letters containing allegations of abuse should only be considered as a trigger for investigation. The allegation must either be proved independently by obtaining sufficient evidence or by obtaining an admission from the customer.

If putting information to the customer obtains an admission, then it is this admission that forms the necessary evidence. However, in putting this information to the customer, it should never be disclosed that it was as a result of an anonymous report.

If an investigation disproves the report, or fails to obtain sufficient evidence to substantiate it, no further action is required and any decision made by the DP must not be influenced by any of the allegations made in the anonomous report.

Removal of Confidential Report

When the investigation is complete, the confidential report should be removed from the file by the DP and destroyed.

Any report of the DP should make no reference to the existence of the confidential report.  This means that the facts of the case should be outlined by the DP without reference to the report received.

Disclosure of documents received in confidence

See "Disclosure of Documents" below re a person's entitlement under Natural Justice to obtain a copy of all relevant documents on his/her file.

However what has been received in confidence and has not had (or will not have) a direct bearing on the decision, should not be disclosed.

It may arise that information is given to a DP by a third party, in order that the DP can make a decision, but the person concerned states that it is not to be disclosed to the customer. One example might be where a young person applies for Basi SWA and his/her parent(s) provide information on earnings for the purposes of assessing Benefit & Privilege (B&P), but request that this data is not made available to the customer. In such cases, the data cannot be disclosed to the customer when explaining the reasons for decisions, as this would be in breach of Data Protection legislation.

Information not received in Confidence

Where the author has given written permission for his/her identity and the contents to be disclosed to the claimant and is willing to be confronted by the claimant e.g. at an appeal hearing.  In such cases the contents of the allegation can be referred to by the DP.

However, wherever possible the DP should seek to obtain sufficient direct evidence to prove whether the allegations are true, so that any decision will be based on such and not rely on third party evidence.

Interview

Where the person attends at the Office for interview about the case, s/he should be:

  • informed that his/her entitlement is being considered/reviewed,
  • told the information available to the Department in relation to the case,
  • advised about the conclusion of the DP in the matter i.e. the [revised] decision s/he proposes to make,
  • Given the opportunity to put his/her side of the case before a decision is made.

In order to have a record for future use that such notification has taken place, a note signed and dated by the relevant officer should be made of the interview. This note should contain a record of any relevant observations made by the claimant.

Code of Conduct for Office Interviews and engagement with Customers

Written Communication

Where the claimant is being dealt with by post, a ‘natural justice’ letter, structured as above and setting out the position in full should issue.  In the normal way, the person should be given at least 7 days to respond before a decision is made by the DP.

Notification in writing should also be used where the claimant requires time to reply or in any case where it is considered that an interview was (or would be) unsatisfactory or that more formal procedures are required.

Summary of Rule (1)

The DP must satisfy him/herself that:

  • The person is aware of all information that could adversely affect his/her entitlement,
  • The person was notified that his/her entitlement was under review and of the possible effects of the review (e.g. that payment could be discontinued or reduced),
  • The person was given a positive opportunity to comment, and to submit any facts or information to correct any inaccuracy or incompleteness in the information,
  • Any comments made by the person are clearly and fully reflected in the file and are considered before a decision is made.

(Please see also the Reasons  for Decision guideline for DP's regarding the obligation to explain to the claimant the basis of the decision, so that the claimant is able to address the relevant issues in the context of an appeal.

Rule (2) No one should be judge in his/her own cause

A DP is required to make an independent judgement on the application of the law, and is not subject to directions when making a decision.  A DP must determine the question before him/her and there should not be even an appearance of the case having been decided on the basis of another person's say-so. Accordingly, while it is acceptable to seek advice from others on a point, a DP should never refer a file for directions as to what decision to give.

The DP may seek clarification from an inspector in relation to aspects of a report (where a SWI has been asked for a report on a case being dealt with by a DP) but should not discuss the decision s/he proposes to make in the case.

Claims by Friends etc.

If the claimant is known to the DP in a personal capacity (e.g. a friend, relation, in law, close neighbour etc.), s/he should not decide the case but should refer it to another DP. You must also advise your immediate line manager (AP) of the situation.

Suspension of Payment

The legislation provides for suspension of payment in cases where there is reason to believe that the person concerned does not fulfil the conditions for the SWA scheme in payment, or that the rate in payment is incorrect. Suspension should not be imposed unless there is reasonable belief that the conditions are not being fulfilled.

As in the case of a decision to disallow, disqualify or reduce payment, the claimant must be informed before payment is suspended and be given an opportunity to state his or her case.

Disclosure of documents

A person is entitled to obtain on request, for the purpose of making a case to the Designated Person or considering or preparing an appeal, a copy of any documents etc. that were or will be taken into account by the DP (or Appeals Officer) in making a decision on the case.

His/her solicitor should similarly be facilitated on request. (This does not require an application under the Freedom of Information Act, but see also those Guidelines for further information therein).

Such documents would include:

  • report of an investigation (e.g. on means abuse) by the Social Welfare Inspector/Designated Person but not the details of anonymous reports,
  • reports of examinations by Medical Assessors for Sick No Benefits cases,
  • reports by employers on the reason why the person left employment,
  • Reports by employers on an industrial accident for Occupational Injuries purposes.

Reports received from external sources in confidence (anonymous letters or confidential tip-offs from persons who are not willing to be quoted) should not be disclosed.

PART 6 . RECORDING OF DECISIONS

When the DP has reached a decision on a question, it should be recorded in writing, including electronically, where the DP is using an ICT System in the Department which meets the required standards for electronic signatures for records and decisions.

The decision must be conveyed to the person concerned.

Under S.I. No 412 of 2007, while the record of the decision in DEASP must be signed (in writing or electronically) by the DP, the memorandum or letter which issues to the customer does not have to be signed.

Note: Many of the Departments system-generated letters to customers are not signed but carry the name of the relevant DP.

More detailed advice on drafting decision letters can be found in the guideline “Reasons for Decisions”.

Decisions must be:

  • Clearly written;
  • Properly signed  (written or electronic signature (initials not sufficient) name typed or written in capitals underneath)
  • Dated.

Reasons for Decisions

Where the decision is unfavourable to the claimant, the DP must give the reason for the decision e.g. where a claim is refused or is allowed at less than the maximum rate of payment. For this purpose a distinction needs to be made between:

  • The 'grounds' of disallowance (e.g. the statutory condition which is/are not fulfilled) and
  • The 'reason' for it (why the grounds are not met)

(Please see fuller treatment in "Reasons for Decision" for Designated Persons Guideline)

The reasons should be given in language the claimant will understand.

In cases where the decision is fully favourable to the claimant, it will not normally be necessary for the DP to record the reasons. However, if the decision to allow a case is exceptional, the DP should indicate in a note the factors that justify the award in the particular case.

Disallowances on more than one ground:
Where an appeal is made against the decision of a DP, the Appeals Officer is confined to the question the DP has determined. If, therefore, a DP considers that a claimant fails to satisfy more than one of the conditions of entitlement, s/he should impose a disallowance or disqualification in respect of all such conditions. For instance, the DP's decisions on a claim for SWA Rent Supplement might be that the claimant is (1) disallowed ‘means in excess’ and (2) not a bone fide tenant’.

PART 7 . THE DECISIONS

Explain, explain, explain!!!

A customer who is awarded the maximum amount payable may want to know how you came to your decision but a customer who is disallowed, disqualified or receiving a reduced amount will want, and is entitled to, a full and easily understood explanation. A properly presented decision will also reduce the number of reviews and appeals.

All decisions should be given in a legible fashion using everyday language and there should be enough detail to be meaningful. The use of jargon should be avoided.

The principles of Natural Justice emphasise the importance of giving adequate information to the customer regarding the reasons why the claim has been turned down or allowed at a reduced rate. It ensures that Natural Justice is seen to be applied at each step and enables the customer to present an informed appeal.

The reasons must be given in simple language so that someone who does not know the Department’s jargon can understand it. The legal basis should also be referred to so that it is evident that the DP was operating within the law.

Many appeals could be avoided. These often arise because the customer does not know or understand the reasons behind the decision or what would constitute a solid basis of appeal.

Follow up Action  

Depending on the response from the claimant, further clarification from the person who furnished the information may or may not be necessary. If the claimant refuses or neglects to make any statement in the matter, a decision on the case by the DP can be made as  the requirements of natural justice will have been complied with by notifying the claimant and giving him/her the opportunity to respond.

What happens if Natural Justice is not followed?

A failure to observe the principles of Natural Justice leaves a decision liable to be overturned.  DPs (and Appeals Officers) are performing administrative functions but must act judicially .

Decisions of DPs and Appeals Officers are open to judicial review.  Therefore, if a determination of a claimant’s entitlements has been made in breach of the principles of natural and constitutional justice, the claimant can seek to have the decision overturned in the High Court by way of judicial review.

Judicial Review

A judicial review is not an appeal; it is a review, not of a decision, but of the way in which a decision was reached. 

Note 1: Minister for Social, Community and Family Affairs v Scanlon [2001] 1 IR 64

 

Summary

DPs should

  • comply with legislative provisions
  • make decisions in good faith and for a proper, intended and authorised purpose
  • act reasonably and impartially
  • apply the values that the legislation promotes, professional values and the values of the DEASP, not personal values
  • examine only relevant considerations and ignore irrelevant ones
  • make decisions based on supporting evidence
  • giving adequate weight to a matter of importance and not give excessive weight to a matter of no great importance
  • provide the person affected by the decision with procedural fairness and
  • make decisions independently and openly

DP’s must not

  • act outside of their powers
  • handle matters in which they have an actual or reasonably perceived conflict of interest.
Last modified:14/08/2017